IMPORTANT POINT
The court established that the failure to file a duly executed Written Statement within the prescribed time limits results in forfeiture of the right to file, and any application for condonation of delay must be made within the same statutory period.

JUDGMENT :

P.T. ASHA, J.

1. The application is filed for condoning the delay of 123 days in representing the Written Statement of the defendant in the above suit.

2. The suit in question has been filed questioning the infringement of Trademark “VARAM” of the plaintiff by using the very same name with an extra ‘M’. The sole defendant in the above suit was served on 13.01.2023. The respondent/plaintiff had obtained an interim order of injunction by orders of this Court dated 11.01.2023 and the interim order was being extended periodically. Ultimately, the interlocutory application for interim injunction was dismissed by orders of this court dated 15.06.2023 and thereafter when the matter was listed on 04.07.2023, the defendant had sought time to bring up the Written Statement.

3. The present application has been filed to condone the delay in representing the Written Statement. In the affidavit that has been filed in support of the said application, the applicant/defendant would contend that the Written Statement had been filed on 08.02.2023 within the period of 30 days from the date of summons. The Written Statement was returned by the Registry for certain compliances and the same was represented on 11.07.2023, as a result of which there was a delay of 123 days in representing the same. The delay, according to the applicant, had occurred only on account of the fact that the Written Statement had been misplaced in the office of their counsel and ultimately it was found along with a disposed of bundle. Thereafter, the defects were rectified and it has been filed with the requisite application for condoning the delay in representation.

4. The learned Counsel appearing for the applicant/defendant would submit that the delay is one for representation and had occurred only on account of the fact that the Written Statement had got misplaced in a disposed of bundle. As soon as they had retrieved the Written Statement, they had taken steps to file the same. He would submit that the provisions of Rule 8 of Order 15(A) of the Schedule to the Commercial Courts Act can be invoked and the applicant may be put on terms for allowing the Application.

5. Per contra, Mr. Abishek Jenasenan, learned Counsel appearing on behalf of the respondent/plaintiff would submit that in the normal course he would not object to an application for condoning the delay in representation as the same is one between the Court and the counsel. However, in the instant case, he is compelled to bring to the notice of the Court the fact that the Written Statement had been originally filed on 08.02.2023 and on the very next day it has been returned. In fact, the learned counsel for the plaintiff was not served with the copy of said Written Statement. He would further submit that the Written Statement must have been filed only to get over the limitation without it being a Written Statement as contemplated under the Act and the Code and therefore the time line of 120 days has to be scrupulously followed and since the application itself been moved much beyond the 120 days period, the application should be rejected. He would also rely upon a judgment of the Hon'ble Delhi High Court reported in Ok Play India Pvt. Ltd. vs. A.P. Distributors and Another, 2021 SCC Online Del 4043.

6. Heard the counsels on either side.

7. It has to be first verified as to whether the applicant is seeking to condone the delay in representation or whether it is a case of condone delay in filing the Written Statement. A perusal of the original Written Statement would indicate that the same had been filed on 08.02.2023 and on the very next day the same has been returned with the following returns:

“1. Presented to be obtained from O.S. (SAR)

2. Other side to served.

3. Written Statement to be filed in proper format, party sign to be obtained. Verification, Prayer portion to be signed.

4. Counsel for the defendant must signed in the Written Statement.

5. Statement of truth to be filed.”

8. Therefore, on a perusal of t